60 Disqualification of Jews and Heretics as Witnesses Against Orthodox Christians

Justinian

28 July 531

This law, given by Justinian on 28 July 531 at Constantinople, was addressed to Johannes, Praefectus Praetorio of the East.

The law is presented as a response to judges who had asked for an authorized statement on the question of the validity of testimonies given by heretics, pagans, and Jews. It consists of the following decisions:

(A) Heretics and Jews are disqualified from giving testimonies against Orthodox in trials in which one party, at least, is Ortho­dox.

(B) Heretics and Jews are qualified to give testimony in trials between heretics or Jews.

(C)  Manichaeans, Borborits, pagans, Samaritans, Montanists, Tascodrogits, and Ophyts are disqualified from any legal act, in­cluding giving testimony in trials between Jews and heretics of other sects.

(D) Jews and heretics, with the exception of the above­mentioned sects, are qualified to give testimony in matters pertain­ing to testaments and contracts.

Justinian had occasion to deal with this subject again, and to reinterpret this law, on 18 August 537 (see below, No. 64). The first restrictions on legal activities carried out by Jews had as their scope matters related to the Church; the 419 Carthage Council prohibited Jews from preferring charges against clerics or testifying against them, except on cases in which they were personally involved.³ These prohibitions were reissued in the 421 Carthage Council,⁴ and they were incorporated by Fulgentius Ferrandus in his Breviatio Canonum, published in Carthage before 546.⁵ Our law indicates that the secular authorities adopted these prohibi­tions and further expanded them; they were to be applied to testi­monies against all Orthodox, clerics as well as laymen, and no distinction was made between cases in which the Jews were per­sonally involved and those in which they were not.

Greek jurists later discussed the question of whether the Jews should be defined as an heretical sect, alongside the others, or whether our law conferred on them a status essentially different from that of the heretical sects.

Codex Justinianus, 1:5:21, ed. Kruger, pp. 59-60

IDEM A. IOHANNI· PP.

Quoniam multi indices in dirimendis litigiis nos interpellaverunt,* in­digentes nostro oraculo,* ut eis reseretur,* quid de testibus haereticis statuendum sit, utrumne accipiantur eorum testimonia an respuantur, sancimus contra orthodoxos quidem litigantes nemini haeretico vel etiam his qui ludaicam superstitionem colunt esse in testimonia com­munionem, sive* utraque pars orthodoxa sit sive altera. Inter se autem haereticis vel ludaeis, ubi litigandum existimaverint, concedimus foedus permixtum et dignos litigatoribus etiam testes introduci, exceptis scilicet his, quos vel Manichaeus furor (cuius partem et Borboritas esse manifestissimum est) vel pagana superstitio detinet, Samaritis nihilo minus et qui illis non absimiles sunt, id est Montanistis et Tascodrogis et Ophitis, quibus pro reatus similitudine omnis legitimus actus interdictus est Sed et his quidem, id est Manichaeis et Borboritis et paganis nec non Samaritis et Montanistis et Tascodrogis et Ophitis, omne testimonium sicut et alias legitimas conversationes sancimus esse interdictum: aliis vero haereticis tantummodo iudicialia testimonia contra orthodoxos, secundum quod constitutum est, volumus esse inhibita. Ceterum testamentaria testimonia eorum et quae in ultimis elogiis vel in contrac­tibus consistunt, propter utilitatem necessarii usus sine ulla distinctione permittimus, ne probationum facultas angustetur.

D.

THE SAME AUGUSTUS TO JOHANNES,⁶ PRAEFECTUS PRAETORIO

Since many judges in course of determining litigation addressed⁷ us, needing our oracle⁸ in order that it will be revealed⁹ to them what must be decided about heretic witnesses, whether their testimonies should be accepted or rejected, we determine that there should be no participation of a heretic, or even of those who practise the Jewish superstition, in testimonies against Orthodox litigants, whether one party to the trial is Orthodox or the other.¹⁰ We grant, however, to the heretics and to the Jews, that whenever they shall deem fit to have litigation among themselves they shall have mixed agreement and even witnesses worthy of the litigants, with the ex­ception, however, of those still held by the Manichaean madness (and it is absolutely manifest that the Borborits partake of it) or the pagan superstition, also of the Samaritans and those who are not dissimilar to them, namely the Montanists, the Tascodrogits, and the Ophyts; all legal action is prohibited to them, because of the identity of their guilt. We determine that to these, indeed, that is the Manichaeans, Borborits and pagans, as well as the Samaritans, Montanists, Tascodrogits and Ophyts, all testimony as well as all other legal actions are prohibited; we want the other heretics, how­ever, to be forbidden only judicial testimonies against the Orthodox according to what has been established. On the other hand, we allow their testamentary testimonies and those found in last wills or in contracts without any discrimination, because of the benefit of this necessary usage, lest the means of demonstration be reduced. GIVEN ON THE FIFTH DAY BEFORE THE CALENDS OF AUGUST AT CON­STANTINOPLE, AFTER THE CONSULATE OF THE ILLUSTRIOUS LAMPADIUS AND ORESTES.¹¹

NOTES

1.        See Basilica, ed.

2.         Ibid., II, p. 416.

3.        H. T. Bruns, Canones Apostolorum et Conciliorum Saeculorum IV, V, VI, VII, I, Berlin 1839, Codex Ecclesiae Africanae, Chaps. CXXIX, CXXXI, p. 195.

4.        K. J. von Hefele, Histoire des conciles, trans. H. Leclercq, 11:1, Paris 1908, p. 214.

5.         Canon 196, ed. P. F. Chiflet, PL, LXVII, Col. 959.

6.        Johannes from Cappadocia, Praefectus Praetorio of the East from 531 to his dismissal in January 532 during the Nica troubles, and again from mid-October until May 541. In 538 he was Consul Ordinarius. See Stein, II, pp. 462, 784.

7.size=1 face="Times New Roman">        Addressed: an unusual use of the verb ‘interpellare’ with the meaning of request for authoritative determination. See H. Silber, “Interpellatio und Mora,” ZSSRG, RA, XXIX (1908), p. 48 n. 1.

8.        Oracle: for the early evolution of the term consult E. Benveniste, “Notes de vocabulaire latin,” Revue de philologie, de literature et d’histoire an­cienne, XXII (1948), pp. 120-122. This term, usually accompanied by adjectives of divinity, such as ‘caeleste’, “heavenly,” ‘divinum’, “divine,” or ‘sacrum’, “sacred,” designates a verdict, decree, or law promulgated by the emperor.

9.        Revealed: this is Haloander’s version (see the apparatus to Codex Justi­nianus). Ms. R, on the other hand, has in this place ‘ut eis respondeatur,’ “that they shall be answered,” and this version is in accord with the Basilica's reading dnOXQl8d)|lEV.

10.      Whether... or: here with subjunctive. Justinian’s quaestors used both indicative and subjunctive in this conditional form. See Grupe, XV, p. 327.

11.      Given... Orestes: 28 July 531. Lampadius and Orestes served as con­suls in 530.

BIBLIOGRAPHY

P. Krüger, “Über die Zeitfolge der im Justinianischen Codex enthaltenen Constitutionen Justinians,” ZRG, XI (1873), pp. 179, 185; Z. von Lingenthal, “Die Meinungsverschiedenheiten unter den Justinianischen Juristen,” ZSSRG, RA, VI (1885), p, 35; Juster, II, pp. 123-124; Browe, p. 129; A Berger, “Studi sui Basilici, VI—Bas. 21.2.45 e CI. 1.5.21,” Iura, VI (1955), pp. 104-116; Seyberlich, pp. 74­75; Honorö, pp. 65 n. 238, 91 n. 313, 92 n. 330 and n. 346, 95 n. 372, 96 n. 386.